The (expected) outcome of the community service sentence re-establishes former Prime Minister Silvio Berlusconi’s personal and political freedom, although, without “criminal rehabilitation,” he formally remains a person with a criminal record due to his conviction for tax fraud.



The discharge of the additional penalty of being banned from public office allows him to fill a public role, although he still faces a prohibition of acutally running for Parliament (until November 2019) as indicated in the so-called Severino law (n.235/2012) as a result of the conviction.



Differently from the ban from public office, annulled by the Milan court on Tuesday, the impossibility of running is not cited in yesterday’s ruling, which states that “all the criminal effects of the sentence” have been dismissed, leaving open the issue of whether banning him from running is part of the “criminal effects.”



In such a scenario, Berlusconi has three options to gain the right to run in an election again, each with a different timing, which may not match the timing of the vote, especially if this is brought forward to 2018.



The first option is his “rehabilitation.” Under article 15, section 3 of the Severino law, “the rehabilitation ruling, under article 178 et seq. of the Criminal Code, is the only cause of early termination of a ban from running and entails its suspension for the remaining period.”



These articles state that rehabilitation “annuls additional penalties and any other criminal effect of the sentence” (and therefore produces the same effects of the positive outcome of the community service) and can be requested after at least three months since the sentence has been served.



Therefore, Berlusconi could seek this in April 2018 and, if granted, this would cancel the word “offender” from his criminal records and would remove the final hurdle to running again.

A second option may be found at the European Court of Human Rights in Strasbourg, where Berlusconi has appealed but which still hasn't yet set a date to hear arguments. Of the two issues under consideration by the Court, the first deals with the criminal versus the civil, or administrative, nature of the ban on running for political office and, therefore, its retroactivity, which would be excluded in the first case based on the principle of favor rei (in favor of the accused). Berlusconi's condemnation dates from 2001, while the Severino Law came into force in December of 2012.

The second issue relates to a sentence by the Court on March 4, 2014 regarding Franzo Grande Stevens and other former top managers of companies linked to the Fiat Chrysler Automobiles empire, including Ifil-Exor. According to Berlusconi's defenders, that sentence addresses the concept of the “accumulability” of criminal penalties, calling it a violation of basic rights whether the penalties are criminal or civil. Criminal penalties can't be lumped together without violating the concept of “ne bis in idem” (basically double jeopardy).

In the Grande Stevens case, the Strasbourg Court affirmed that “administrative sanctions imposed by (stock market regulator) CONSOB on the defendants - fines of millions of euros and restrictions on holding corporate jobs - were by nature criminal, not civil, penalties given “their heavy economic toll and their impact on the reputation of the accused.”



A verdict in the Berlusconi case could take as long as a year. In time, however, for the 2018 vote.



The third option, and in the end the riskiest and most uncertain, could be viable in the case of early elections, unless the Strasbourg Court hasn't already intervened. Silence by the Milan Court leaves room for doubt whether the restriction on running for office falls under the “criminal consequences of the guilty verdict” that would be extinguished by Berlusconi's successful completion of his community service sentence. Berlusconi could, therefore, decide to run, leaving a decision up to the electoral authorities and, if elected, to the Chamber of Deputies. Prevailing opinion deems that unlikely since the restriction on running is a clear administrative consequence of the sentence.

But the opposing argument cites legal precedent established by the Court of Cassation, which until now has opted for a broad concept of “criminal consequences” deriving directly from an irreversible conviction, provided that it doesn't involve any discretionary judgement by the state.

© ITALY EUROPE 24 - ALL RIGHTS RESERVED